Public Bill Committee

[Mr. Jim Hood in the Chair]

Written evidence to be reported to the House

H&SC 10 Medical Defence Union
H&SC 11 Royal College of Nursing
H&SC 12 Monitor
H&SC 13 Local Government Association
H&SC 14 The NHS Federation
H&SC 15 York Health Economics Consortium
H&SC 16 Healthcare Commission

Jimmy Hood: Before we begin, I have a few preliminary announcements to make. If they wish, hon. Members may remove their jackets during the Committee sittings. Will they ensure that in Committee their mobile phones and pagers are turned off or are switched to silent mode? I remind them that copies of the money resolution in connection with the Bill are available in the room. Adequate notice should be given of amendments. As a general rule, I and my fellow Chairman do not intend to call starred amendments, including any that may be reached during an afternoon sitting.
We are still in the early days of taking oral evidence in Public Bill Committees so it might be helpful if I explain briefly what is proposed so that we can be clear about matters. The Committee will first be asked to consider the programme motion on the amendment paper for which debate is limited to half an hour. We will then proceed to a motion to report written evidence followed by a motion to permit the Committee to deliberate in private in advance of the oral evidence sessions. I hope that we can take the motions formally.
Assuming that the second of the motions is agreed, the Committee will move into private session. Once the Committee has deliberated, the witnesses and members of the public will be invited back into the room and the oral evidence session will commence. If the Committee agrees to the programme motion, it will hear oral evidence today and on Thursday morning before reverting on Thursday afternoon to the more familiar proceedings of clause-by-clause scrutiny. I call the Minister to move the programme motion.

Ben Bradshaw: I beg to move,
That—
(1) the Committee shall (in addition to its first meeting at 10.30 a.m. on Tuesday 8th January) meet—
(a) at 4.00 p.m. on Tuesday 8th January;
(b) at 9.00 a.m. and 1.00 p.m. on Thursday 10th January;
(c) at 10.30 a.m. and 4.00 p.m. on Tuesday 15th January;
(d) at 9.00 a.m. and 1.00 p.m. on Thursday 17th January;
(e) at 10.30 a.m. and 4.00 p.m. on Tuesday 22nd January;
(f) at 9.00 a.m. and 1.00 p.m. on Thursday 24th January;
(2) the Committee shall hear oral evidence in accordance with the following table:
TABLE

Date

Time

Witness
Tuesday 8th January
Until no later than 12.30 p.m.
Commission for Healthcare Audit and Inspection; Commission for Social Care Inspection; Mental Health Act Commission
Tuesday 8th January
Until no later than 1.00 p.m.
Health Protection Agency
Tuesday 8th January
Until no later than 4.40 p.m.
Lady Justice Smith
Tuesday 8th January
Until no later than 5.20 p.m.
General Medical Council
Tuesday 8th January
Until no later than 6.00 p.m.
British Medical Association
Tuesday 8th January
Until no later than 6.30 p.m.
‘Which?’
Tuesday 8th January
Until no later than 7.00 p.m.
Local Government Association
Thursday 10th January
Until no later than 9.30 a.m.
National Childbirth Trust
Thursday 10th January
Until no later than 10.25 a.m.
Department of Health
(3) proceedings on consideration of the Bill in Committee shall be taken in the following order: Clause 1; Schedule 1; Clauses 2 and 3; Schedule 2; Clauses 4 to 48; Schedule 3; Clauses 49 to 62; Schedule 4; Clauses 63 to 89; Schedule 5; Clauses 90 and 91; Schedule 6; Clause 92; Schedule 7; Clauses 93 to 103; Schedule 8; Clauses 104 to 114; Schedule 9; Clauses 115 to 117; Schedule10; Clauses 118 to 120; Schedule 11; Clauses 121 to 130; Schedule 12; Clauses 131 to 135; Schedule 13; Clauses 136 to 148; Schedule 14; Clauses 149 to 154; Schedule 15; Clauses 155 to 161; new Clauses; new Schedules; remaining proceedings on the Bill;
(4) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 7.00 p.m. on Thursday 24th January.
I will make a few brief remarks as I do not want to take up the time that we would all like to spend on questioning the evidence givers. I am delighted to be serving under your chairmanship, Mr. Hood, and that of Mr. Conway. I welcome the membership of the Committee. We have some excellent hon. Members who have a great deal of expertise. I look forward to scrutinising the Bill. It was subject to a very positive discussion on Second Reading. We have a good representative group of witnesses to question today and on Thursday.

Stephen O'Brien: I add my welcome to you, Mr. Hood, as Chairman of the Committee, and to Mr. Conway. We look forward to serving under your leadership of our proceedings. On behalf of the official Opposition, I, too, welcome all members of the Committee to the opportunity to scrutinise the Bill, which is important in terms of the health and social care of people in England and Wales, and which, at times, touches on other legislative areas and jurisdictions of the United Kingdom.
I reiterate that the Second Reading debate was a positive introduction to the Bill, and I am pleased to see the witnesses available to us in the first three sittings, negotiated between the two Front Benches, out of a total of 12 sittings for the scrutiny of the Bill. Three sittings for witness evidence seems to be appropriate and reflects the importance and seriousness that all of us across the House place on the views of those who have an interest in these matters. I am pleased to see that, as noted by a number of people, the negotiations successfully led to what is now proposed as the programme motion for the list of witnesses. That includes the National Childbirth Trust, which, crucially, will be available to us to discuss the issue of the health in pregnancy grant. I had hoped for opportunities to hear from Monitor, the National Institute for Health and Clinical Excellence and a number of others, not least the Patient’s Association. That did not prove possible, although we hope that their advice will be available to members of the Committee during the scrutiny of the Bill.

Question put and agreed to.

Ordered,
That, subject to the discretion of the Chairman, any written evidence received by the Committee shall be reported to the House for publication.—[Mr. Bradshaw.]

Jimmy Hood: Copies of any memorandums that the Committee receives will be made available in the Committee Room.

Ordered,
That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—[Mr. Bradshaw.]

The Committee deliberated in private.

On resuming—

Jimmy Hood: I welcome witnesses to the Committee. It is nice of you to come here this morning.
It is an interesting new process that we are now engaged in and we are on a learning curve, I assume, in all parts of the Committee.
Could I ask our witnesses to say who they are and who they represent and then we will proceed.

Anna Walker:   I am Anna Walker, chief executive of the Healthcare Commission.

Ian Kennedy:   I am Ian Kennedy, chairman of the Healthcare Commission.

Lord Kamlesh Patel:   I am Kamlesh Patel, chairman of the Mental Health Act Commission.

Chris Heginbotham:   I am Chris Heginbotham, chief executive of the Mental Health Act Commission.

Dame Denise Platt:   I am Denise Platt, chair of the Commission for Social Care Inspection.

Paul Snell:   I am Paul Snell, chief inspector of the Commission for Social Care Inspection.

Jimmy Hood: Before I move on, a question to all means to each organisation, so please chose between yourselves who speaks and answers.

Q 1

Sandra Gidley: This is a question to all. Do you agree with the decision to create a single integrated inspectorate for health and social care? Perhaps we could start with the Healthcare Commission.

Ian Kennedy:   I think that creating such a single regulatory body presents significant challenges. I will identify four: first, the rationale of the Bill needs to be clear, and, in my view, it is not yet clear. Secondly, the costs have to be understood, and, in my view, they are high. Thirdly, the momentum gained in caring for the interests of patients and those who look after them must not be lost, and it is in danger of being lost by such a significant upheaval. Fourthly, risks of harm to patients must be understood and prevented during the process of creating such a body. Those are my four points.

Lord Kamlesh Patel:   I suppose, as the Mental Health Act Commission, we are in a sense a very different beast to the other two organisations. We are not an inspectorate, we are a visitorial body. The group of patients that we look after are very different to your run-of-the-mill patients in health or social care settings. These people are detained compulsorily under the Mental Health Act. They are there because they have to be there, sometimes for their own good. The level of treatment that we see for some of these people is very poor, as you can see from the evidence presented.
To coin a phrase from one of my colleagues, we are a reluctant bride in this process. There are some benefits to be had in potentially having more teeth, although we have run for the past 25 years without any teeth, and we have managed on persuasion alone. There are potentially more resources for a very small organisation like ourselves—our budget is £5.5 million, and that includes second opinions; it is tiny in terms of the bigger picture. There are going to be no cost savings by merging us with the other two organisations. There are a number of issues for us that make it more palatable. We outlined six in our evidence, but I will raise two or three.
One is around visiting long-term patients. We have developed a methodology over the past 25 years in how we visit and interview detained patients. We have 109 public appointees, people from various backgrounds—health and social care, lay members and service users—all with expertise and experience of mental health law and how to relate to people detained under the Mental Health Act 1983. We visit at short notice or unannounced and we work with organisations. Unfortunately, on a small resource—I am talking about only 15 full-time equivalent staff, people work 24 days a year for us—we find up to three serious abuses of mental health law every single week. I could go through some examples later of fairly serious abuses of mental health law, so we need that visiting programme to continue. In any environment where the sole priority is not just detained patients, but all health and social care, that can easily be lost so we must have constant daily visiting. We interview some 6,000 patients a year, we look at over 6,000 documents a year, and we visit every ward in the country once every 18 months. That is key.
Two brief points on staffing: we have a very small secretariat, but the staff have around 250 years of experience between them. They offer excellent expertise in one particular area, and that should not be lost. You can pick up the phone and ask us on any day about any ward in the country that has detained patients and we will be able to tell you about it. I worry that on 31 March 2009 that will be lost unless safeguards are put in place to ensure it does not happen.

Q 2

Sandra Gidley: I think that we will be picking up on some of those concerns later, thank you. Commission for Social Care Inspection?

Dame Denise Platt:   I think that CSCI’s position is well known.

Sandra Gidley: On the record.

Dame Denise Platt:   On the record, we do not think it is the right time to bring together the Healthcare Commission and ourselves, so soon into the programme of regulatory reform that we were set up to deliver. I base that on the number of reforms that have taken place since 2002 in the regulation of social care. We had just begun to get to grips with it and make some impact on both the quality of services out there and also on helping people’s voices to be heard. We do not want to see that progress lost in the new arrangements.
The people who use social care services are a neglected constituency and they are in a powerless position as consumers of those services. As a commission, we have tried to amplify those people’s voices and make their concerns heard. Our concern is that in such a big regulator as the new Care Quality Commission is likely to be those people’s concerns will be lost again, and those voices will become whispers against the much louder, articulate voices that will argue about mainstream health care services.
There are four things that we want to see as the Committee progresses with the Bill. We want a strong social care focus to be retained; we want to build on the progress that we have made—particularly on involving people who use services—and we want the new commission to take a proper rights-based approach to its work. Although the commission itself will have a human rights duty, many of the services that we in the social care commission regulate do not have such a duty, and many residents and people using services are disadvantaged as a result. We also want the commission to retain independence and to be able to speak out on behalf of the constituency, which is the people who use services.

Q 3

Ben Bradshaw: It may be helpful for the Committee if all three organisations, particularly members of the Healthcare Commission, could clarify whether the views they have expressed now mean that they are departing from their principled welcome to the Bill when it was published on 24 October.

Dame Denise Platt:   I think you will find that my original response to this was not a principled welcome at all.

Q 4

Ben Bradshaw: I am asking whether your view has changed since you welcomed the publication of the Bill in your press release on 24 October, or whether you are concerned about specific details of the Bill. On 24 October, all three organisations welcomed the creation of an integrated regulator. Has your view changed since then, and if so, why?

Dame Denise Platt:   I quite happily say that my position has not changed on this at all. Our press release reflected the fact that the Government had made a decision based on their policy considerations, and therefore, presented with a fait accompli, our role now is to try to help get the Bill right to deliver the things that we think are important for our constituency. If you look back to the statements I made 17 days before the end of our first year as a commission, my position has been entirely consistent.

Q 5

Ben Bradshaw: You said, “We broadly welcome the policy direction set out by the Government”.

Dame Denise Platt:   Yes, we broadly welcome the policy direction, as it was a fait accompli at the time and you were in no mood to change it. We recognise the tsunami when it comes.

Q 6

Jimmy Hood: Does anyone else want to answer the Minister’s supplementary question?

Ian Kennedy:   I will happily respond because the question was put to me. Minister, we welcomed the principle of bringing together the regulation. We did not necessarily welcome the fact that it would be done at this time and in this way, and that is our position. Since I wrote the Bristol report, it is my position that ultimately, bringing together health care and social care regulation is desirable because the citizenry do not know, and care less, under what system they are being looked after—they want it to be seamlessly well-organised. It does not follow from that, and neither was it our position then or now, that one needs the legislative scheme that is being brought forward. The principle is right; the timing and the content warrant further consideration.

Lord Kamlesh Patel:   From our point of view as well, the principle is right. We must ensure that our particular interests in respect of detained patients are safeguarded. We have spoken to the Minister several times and listed some of the key issues around visiting and the way in which we monitor the Mental Health Act. As long as those are retained and strengthened, we would support the Bill.

Q 7

Stephen O'Brien: Picking up on Dame Denise Platt’s point, all of us are dealing with a Bill that now exists and we cannot rewind the clock, despite the urging of the leader in today’s Financial Times, which seems to suggest that the Bill should be abandoned. I want to direct my questions to CSCI and the MHAC. They have both expressed concern that the new commission will be dominated by its health care responsibilities, and may neglect social care and its duties under the Mental Health Act. What changes to the Bill, now that we are presented with this, would you like to see to help prevent that from happening? At the same time as you are considering your answer to that, perhaps you can also ensure that we have an idea about where in your current work you have a fear that these will be lost in the merger.

Dame Denise Platt:   One of the challenges of the Bill before you is that it is a piece of framework legislation. As one of my colleagues put it, there is a floor plan, but we do not know whether it is a bungalow or a skyscraper in Canary Wharf. A lot of the devil will be in the detail of the legislation that is to follow. Our concerns in social care are that NHS services and private hospital facilities are places where people receive treatment. The 24,000 social care residential facilities that we regulate are places where people live—they are their homes—or services are delivered to people in their own home. So in considering how the framework outlined in this Bill can accommodate the registration of a large 1,000-bed acute trust such as Jimmy’s in Leeds, a six-person learning disability home, a one-person adult placement scheme or a domiciliary care service employing fewer than 30 people, it is difficult to get from the wording of the Bill how those regulatory responsibilities will be carried out. We either have under-regulation in one area, or burdensome over-regulation in another. Although we have concerns about social care being heard in the new organisation, the formal regulation of social care will form the largest part of the activities of the commission in the day-to-day work that it does.
In the first instance, we think that it may be necessary to have some specific structural safeguards to ensure that the social care aspects of our commission’s work are not overlooked, in the same way that disability interests retained a focus in the new Equality and Human Rights Commission. That is in the context of the Equality and Human Rights Commission wanting to integrate all its work but retain a specific focus.
We think, too, that as you discuss and amend the Bill you will have to look at the proposals in terms of both health and social care and, specifically, the new enforcement powers in the Bill. We have wanted a wider range of enforcement powers to assist us in our work because at the moment the process is too elongated. There are not sufficient short, sharp shock measures to stimulate improvement, and these processes can go on for a very long period. We know that the Care Standards Tribunal also supports new enforcement measures that can abbreviate some of those processes, with proper safeguards for providers. We welcomed the new enforcement powers in the Bill because they give us the armoury for prompt, proportionate and timely action. However, those powers may not be appropriate if you are an acute hospital looking at a ward. So to amend those powers from a health service interest might actually take away a lever that social care needs. We would urge you to look at the enforcement powers with care.
We are also very concerned that some of our functions are dilute and become permissive in the new commission. We give as an example the undertaking specific reviews into aspects of service, such as the report that we did on time to care, which was on domiciliary care services. It is not clear to us why the function cannot be transferred from the start, and why it is going to be put into abeyance for a year—perhaps longer. Nor can we see why the carrying out of reviews has been downgraded from being a requirement—a duty— as it is at the moment, to a permissive power.
The principles of public service inspection from the Cabinet Office talk about the need for inspection to generate data and intelligence that enable departments more quickly to calibrate the progress of reform in their sector and to make appropriate adjustment. We think that special studies do exactly that, so we cannot see why that function is watered down.
The Bill is also weak on informing the public. There is no requirement to publish inspection reports; those may be made public, but there is no requirement. We think that all our inspection reports should be public. Also, the Bill does not put enough emphasis on involving people in the activities of the new commission. We have tried to involve people in all aspects of our work—not just by consulting or taking account of people, but by involving them in our policy making, our inspection activities and how we design our work. All of that is really underplayed in the Bill.
I made a point earlier on the human rights legislation, about the particular services that we regulate not having a public duty. There really may need to be some structural support to help the commission to take a human rights approach, particularly in those areas where others do not have the same sort of duties upon them. So again, some structural underpinning may be needed in the first instance. I could go on, but I will not because we still want to say a few things.

Q 8

Stephen O'Brien: I am very grateful, and before the MHA replies I will ask a supplementary so that they can help to cover this. Is it both what is and is not in the Bill that causes you concern? Also, do you think the expected £60 million saving to the £140 million overall cost—the figures now being reported—are the sort of numbers that you expect to recognise in what we will see in future? The Healthcare Commission might also like to comment on that particular aspect.

Lord Kamlesh Patel:   If I start, Chris can contribute as well. You asked specifically, “What changes to the Bill?”, so I will focus on tightening the Bill rather than on some of the process issues that we are concerned about. In theory, we are lifting the whole of the Mental Health Act Commission’s legal duties under the Mental Health Act and transferring them under this Bill. People should be saying, “What is the problem, when all of the legislative protection that you had is moving into here?” I suppose the difference is that we are an organisation focused on one client group. Our sole priority is detained patients.
All our resources and thinking are on the safeguarding of those patients, so we interpret that legislation in a particular way to ensure that they have full protection—that is, mainly, by our visiting programme. The fear is that we will get lost in a larger organisation. If there is a health scare of some kind, then you might stop visiting. I will give you some examples from what we see on a day-to-day basis; I keep talking about the evidence, and I am not sure whether you have the evidence that we have presented to the Committee.
When going into a ward, since this is not a bureaucratic process and there are no teams of us going into organisations to demand lots of paperwork and staff time, an individual simply goes in based on our understanding of the ward or unit and interviews detained patients. Lots of the issues arise when interviewing those detained patients who do not want to see us. At our conference last month, I gave 100 commissioners two minutes to give me just one thing that they had seen that had disturbed them within the previous months. Examples were given of a male member of staff using his mobile phone to photograph a naked woman patient in the bath; of allowing a disability patient to be restrained, and his arm broken with two fractures; of a patient who was HIV-positive having his razor used by other patients on the ward; of over-occupancy by 100 per cent. in something like 40 per cent. of London hospital wards; and of cockroach and mice infestation throughout. In two minutes, over 100 such examples were given of what happened in the last six months of 2007. Only by visiting these places can we address these issues.
The point, which I am getting to, is that we need something in legislation to ensure that that visiting process does not change and is safeguarded. I know how difficult it is to stipulate in legislation that you will visit A, B and C, but we need to tighten that process. Do you want to add to that before I go on to the other points?

Chris Heginbotham:   I was wondering whether we might just pick up the six key points that we have set out in our evidence.

Q 9

Jimmy Hood: Is it addressing Mr. O’Brien’s question?

Chris Heginbotham:   It is addressing that point. Lord Patel of Bradford spoke about visiting. One of the things we would like to see in the legislation, if possible, is the right sort of wording to ensure that the new organisation undertakes a visiting programme, frequently and regularly, to all wards of all establishments that take detained patients. Detained patients are among some of the most vulnerable people in the country and we need to ensure that the legislation points the organisation toward providing the resources and time to undertake that function.
One further area that we would like to see strengthened relates to anybody who is deprived of their liberty, either under the Mental Health Act or the Mental Capacity Act 2005. We do not feel that the legislation as drafted gives sufficient attention to the monitoring of the deprivation of liberty under both Acts of Parliament.
A second area that we would like to see strengthened within legislation is the involvement of mental health service users or, indeed, patients in health and social care, within the processes of the Care Quality Commission and regulation. If that could be put into legislation in some way, we would feel that to be very beneficial.
Thirdly—we may want to come on to this point with CSCI and the Healthcare Commission, which may have questions on it—we would like to see adequate organisational and personal accountability at board level for the monitoring of and reporting on the needs and rights of detained patients. How that is to be done is perhaps a subject for lengthy discussion, but we believe that there is a need to place personal accountability on the chair or the chief executive, or possibly on the board collectively, to report to Parliament and the Secretary of State on the rights and needs of detained patients.
Fourthly—this is perhaps one of the most important areas—we would like to see the Bill strengthened in relation to statutory notifications of information to the Care Quality Commission on the way in which detained patients are treated. Specifically, this refers to the admission and discharge of patients and a number of factors relating to their care and treatment, such as a notification of deaths of detained patients and any death of a patient that is notified to the coroner—in other words, not all deaths of all patients, but deaths of detained patients and those where there are specific circumstances that require a notification to the coroner. 
There are a number of other areas of notification that we think very important, but all admissions, discharges and deaths—with information on age, sex, sexual orientation, faith and ethnicity, as well as on disability status—need to be available to the Care Quality Commission to enable it to do its job correctly.

Lord Kamlesh Patel:   May I just add to that? It is such a crucial area because it is in regulations in the Bill at the moment. We know from experience that this information is not just simply collected. If you look at the mandatory requirement to have ethnic monitoring for all in-patients since April 1995, it is appalling in terms of how we undertake it. There is about 46 per cent. accuracy, and we know that we can change that because we have done it at 100 per cent. If this was a statutory requirement and these were bits of information that you would need in order to care for a patient anyway, it would not be an extra burden, but it is information that would allow us to monitor trends, movements, how many children are placed on adult wards and how patients are coming into and out of the system. It is crucially important that this be in the Bill as a statutory requirement.

Q 10

Stephen O'Brien: I do not know whether it would be helpful to short-circuit slightly the very helpful set of points being made, but an amendment has been tabled which calls for a review to Parliament on a regular, and indeed annual, basis. Now it is a possibility that one could actually prescribe what should be contained within that review—which in itself would command what needs to be done—so I do not know if that helps in terms of whether that would be an appropriate mechanism by which your points could be delivered?

Chris Heginbotham:   I think that would be helpful, but it perhaps either does not go far enough or is a slightly different issue. Clearly it is very important that Parliament receives a regular review based on hard factual information as well as visiting by inspectors or people similar to our current commissioners, but I think what we are also saying is that we would like to see that there is a statutory duty on all providers of mental health services to provide a set of information regularly to the Care Quality Commission. That would cover all deaths of detained patients and those notified, as I have mentioned; all serious and untoward incidents; all homicides by detained patients or informal patients; all incidents of serious injury to patients, however so caused; all formal admissions and discharges, including discharges to community treatment orders under the new Mental Health Act 2007; and all mental health review tribunal decisions. If we had that information on a regular basis, it would enable the Care Quality Commission to monitor the way in which care is being provided much more effectively, and provide an opportunity for the Care Quality Commission to focus its activity where the majority of detained patients are; to be able to look at the needs of those patients, and perhaps to pick up trends where there are problems emerging in particular services.

Q 11

Stephen O'Brien: So, if I fully understand your organisation’s view on this, it is that, while some of this is currently under regulations, you believe that without it appearing in a more upfront legislative manner—in primary legislation—it is not sufficient to get to where you think it ought to be?

Lord Kamlesh Patel:   Currently, we have no access to this data; we request it from people. So we find out, because of the goodness of those service providers’ hearts in telling us, that 300 children are placed in adult wards every year. We do not know if that is the tip of the iceberg or its entirety. We know that black patients are twice as likely, or four times more likely, to be detained. We do not know if that is the tip of the iceberg or not.

Q 12

Stephen O'Brien: Just to round this off, I notice that the healthcare commissioner was nodding. Does he want to react to some of the points that were just raised, and also is there any help he can give us on this expected costs idea?

Ian Kennedy:   I will let Anna Walker speak because she knows more about this than I do; I will merely say that any observation Lord Patel makes about information is absolutely crucial and the whole system of modern regulation should be, as far as it is able to be, built upon the supply and analysis of data, but of course MHAC’s special circumstances require also the need for visits and we think that is entirely right.

Anna Walker:   It might be helpful for me to make two points. On the question of costs, there are two aspects. The Government have looked quite rightly for some savings—it is right for any organisation over a period of time to make savings—and we have met their target on savings. As far as the Care Quality Commission is concerned, it will need to be resourced to do the job which Parliament sets it.
I would like to make a point that backs Dame Denise Platt’s point, which is that the Bill you have in front of you provides a framework but the devil is in the detail over regulatory systems and there are at least two important areas, which are crucial to what the new regulatory body is going to cost, which have yet to be fleshed out. One is the scope of the regulatory structure; it is health and social care, and I think the definition in social care is a great deal simpler—I am not suggesting that it is simple per se—but on the health care side, we currently have two systems: one to regulate the NHS and one to regulate the private sector. What we do, in terms of regulation in both of those, is fundamentally different. So the costs for the Care Quality Commission will depend on what, at the end of the day, is caught in the scope of regulation.
At the moment, the scope of regulation would be defined under clause 4, and we actually think it is very important that the Committee satisfies itself as to what would be within the scope of regulation. Our argument is that what needs to be within scope are issues which cause risk to patients.
At the moment we have a mismatch, where most primary care in the public sector is not caught in regulation and we believe that what is caught in regulation in the private sector is over-detailed. That is a specific health care regulation issue.
The second issue that will define a great deal of the cost for the Care Quality Commission will be what is in registration requirements and again, that is left to be defined under regulation—clause 6, I think it is in that case. We believe, and here our points are very similar to CSCI’s, that it is important to catch the right issues, and not too many of them, focusing on outcomes, but certainly, as far as health care is concerned, because in some cases you are dealing with very big systems, you need to ensure that the right systems for assuring clinical quality and safety are clearly caught.
One important point I would like to make at this stage, if I may, is that we are very perturbed that at the moment the administration requirements explicitly exclude catching work on health, as opposed to health care. As, nationally, we believe, on behalf of those who use health care services, that people’s health needs to be looked after as well as their health care, we think a specific amendment needs to be addressed in that respect.

Q 13

Stephen O'Brien: Can you give me an example of what you mean by that distinction?

Anna Walker:   The registration requirements explicitly say that they cannot bite on public health issues, only on health care issues. We think that is, in principle, wrong. I do not want to go to a health care organisation that does not look after my health as well as my health care.

Q 14

Stephen O'Brien: I am sorry to pursue it, but just to be absolutely clear, do you believe that comes within the ambit of the clause 6 definitions?

Anna Walker:   The devil really is in the detail here, but we believe that the way the powers to define registration requirements have been drawn up excludes public health issues. That is why we think there are some issues that need teasing through here.

Q 15

Ben Bradshaw: Just a brief question that I think brings together the latest round of questions and answers, and that is whether the witnesses see that there may be an inconsistency between their desire for more prescriptiveness on the face of the Bill and their desire for the new commission to be flexible and independent and plough its own furrow. I will just leave that question hanging.

Q 16

Jimmy Hood: It would be unfair not to invite a response.

Anna Walker:   If I could just make a quick response, the point we are seeking to make is that as the Healthcare Commission we are very conscious of how much regulation there can be in this area and we do not want over-duplication. So our argument is not for prescription, but for getting the framework right so that the right level can be applied. In certain instances, we do not believe that framework is right yet. May I make one other point?

Q 17

Stephen O'Brien: Before that point, and I suspect that Dame Denise Platt might want to comment on this as well, is it the ambit—the scope—that you are seeking this clarification on, rather than the depth of the detail of process implementation?

Anna Walker:   There is a specific issue on scope, on what is covered for regulatory purposes in health care, and it is greater in health care than elsewhere. Also, on a specific area of detail, we think the registration requirements—the basic requirements—should allow health to be captured as well as health care. That is a very specific detail.

Lord Kamlesh Patel:   I think generally, in response to the Minister’s question, that of course you want to give flexibility to the new organisation, the new chief executive and the chair and the board, but for our purposes, we want to be very specific about two or three particular things. We want them on the face of the Bill because, from our experience of what might happen to this group of people who are so vulnerable, their issues will not be safeguarded unless provision is very specific and is on the face of the Bill, in terms of notifications, in terms of regular, frequent visiting and in terms of some accountability to Parliament from a particular individual or the board. On those two or three areas, we will be specific. It goes without saying that all of us agree that the human rights principle and the involvement of service users should be there and any organisation would agree with that.

Dame Denise Platt:   I do not want to add much to what my colleagues have said. I do not see that there is a conflict in what we have described, which concerns clarifying certain aspects of the Bill to make it more effective in the very challenging job that it is to take on. There is flexibility and flexibility, and if everything is left to regulation that is the ultimate flexibility. It is also the ultimate straitjacket because it depends on how the Secretary of State then frames the regulation. We are anxious to get the balance right.

Stephen O'Brien: I notice that Anna Walker wanted to add one more point, Mr. Hood.

Jimmy Hood: Mrs. Walker, you should not be invited to respond if you do not want to do so. The hon. Gentleman seems to be assuming that you want to ask questions.

Stephen O'Brien: Mrs. Walker did indicate that she wished to do so, but I was conscious that I cut across her.

Anna Walker:   There is a point I would like to highlight. There has been a lot of discussion down the table on the important question of safeguarding the human rights of a vulnerable group. I would not like the Committee to be left with the impression after this part of the discussion that there is a dichotomy between the Mental Health Act Commission, social care and health care.
A very great deal of our work concentrates also on those who are particularly vulnerable and on safeguarding their rights. They might not be formally detained, but people with learning disabilities or mental health issues and older people, particularly in hospital, all raise the same issues. In those circumstances, we visit systematically in the way in which the Mental Health Act Commission and others do. The reason why I made that point is that safeguarding a particularly vulnerable set of users, together with visiting, is an issue that runs across all three of our organisations.

Jimmy Hood: Sandra, did you want to come in?

Q 18

Sandra Gidley: I want to pick up on the Minister’s point about independence. In the CSCI submission, concerns were raised that the new body will not be as independent because ministerial approval is required for a range of matters. Will someone from the CSCI comment on whether the new body will have greater or lesser independence?

Dame Denise Platt:   It is difficult to know that. I shall comment on the issue in the context of the specific reviews. In our experience, specific reviews are where we bring together a range of intelligence and we ask the next question of the policy or the circumstances. For example, we will publish a report this month on what happens to people who do not meet eligibility criteria in social services. Before Christmas, we published a report on risk and restraint in care homes, and the dilemmas in care that raised for care staff and where the lines should be drawn.
It seems to me that the new commission should have the powers and the duties to identify those issues and comment on them as emerging issues, and to identify them themselves rather than in advance seek the agreement of the Secretary of State and go through a whole process that might delay looking at an issue that needs immediate attention. We also feel that the new commission should account directly to Parliament; it should be accountable to Parliament, with proper scrutiny of its activities. To that end, we think the chair and the chief executive should go through a public scrutiny process as proposed in the Green Paper for senior public appointments. It is sufficiently important an appointment to go through that sort of scrutiny.
We think that the independence should be clear. The body should have the opportunity to think, initiate and comment and to be accountable to Parliament for what it does.

Q 19

Sandra Gidley: Do you have concerns that that will not happen?

Dame Denise Platt:   I am not sure that the Bill presents that sort of independence. There are a lot of references to “with the agreement of the Secretary of State”. Of course, any body has to be accountable to its sponsoring Department and to agree resources and programmes of activity. We are not saying that should not happen, but it feels slightly more like an arm’s length body than an independent, non-departmental public body.

Q 20

Angela Browning: Lord Patel and Chris Heginbotham have given us a very clear outline today of the work of the Mental Health Act Commission. Under the umbrella of the Care Quality Commission, would you envisage that mental health will be dealt with by a specific team of people or a separate department in order to maintain the expertise that is clearly essential? How in practice would you see this happening under the new umbrella organisation?

Lord Kamlesh Patel:   In some sense, because of the expertise that is required, we would possibly see a director of mental health who would have responsibility, reporting to the board, to oversee all mental health practice. I think that is very important, given the specific remit around the Mental Health Act and the monitoring of detained patients.
We would probably want to see a separate team that influences the rest of the organisation. If it is going to be one organisation, what you do not want is a silo approach. In relation to detained patients, there is a process that has to be followed whatever the structure of the organisation, which is why we are so keen to have safeguards in legislation.

Q 21

Angela Browning: Further down, regarding the people who actually go to hospitals and carry out inspections. You emphasised very clearly in one of your answers how the process is about people and how they pick up from their experiences specific wards, specific conditions and so on. They start to identify, as opposed to someone who just goes in with a tick box and ticks it all off one way or the other. How do you envisage retaining that expertise at that level?

Lord Kamlesh Patel:   There is one simple solution. At the moment we have 109 people who work 24 days a year. You could retain that expertise. They are public appointees. I would not expect this new commission to have public appointees in the same way. It would not work. But you could use a large amount of that expertise as your inspectors because it would be a shame to lose all the experience that those people have gathered over the years, working in hospitals, and their knowledge of the patients and their relationship with senior managers and just let that go overnight. So if there was a transition period you could take that vast amount of experience, skills and knowledge and translate it into part-time inspectors who would keep a similar remit and visiting pattern.

Q 22

Angela Browning: Could I now come to the next question I was to ask, which is about elderly people? Anna Walker touched on it, and I also ask Lord Patel and Chris Heginbotham to keep it at the back of their minds, because one of the advantages of the Care Quality Commission is that there are no glass walls. As we know, when we are dealing with people they do not necessarily have one condition, so there is this mix of learning disability and mental health.
Coming now to care and inspection of behalf of the elderly. Do you believe this is going to improve the quality of care for elderly people, given the demographics we face with an increasingly elderly population? I wonder whether you think having these different disciplines working more closely together is going to help, or are you concerned that things will become so generic that specific groups such as the elderly will not see the improvement in quality?

Anna Walker:   What our work at the Healthcare Commission has taught us is that we have a number of groups of people who are vulnerable: the elderly, the mentally ill, those with learning disabilities, children and sometimes people with long-term conditions who are absolutely dependent on the health care and the social care that they get.
Ensuring that they get the right quality of care requires two things. It requires ensuring that there is a systems approach in place in that organisation which in principle can deliver what is needed, and then it requires more intensive follow-up to check it is in place for all people all of the time. That is why I made the point earlier that I do not think that we are in a very different position from the Mental Health Act Commission with some of the groups of users that we serve.
The question then comes whether there are adequate resources to do that job when it is necessary. As the Healthcare Commission, we have always challenged ourselves to try to use information, as well as visiting. With regard to older people, we have said that if a group of concerns is expressed to us by users, we will go in and visit on behalf of those older people, so we constantly challenge ourselves to find the most effective way to use resources.

Q 23

Angela Browning: Do you all agree on the point made by Dame Denise? She mentioned a report that is being made about people who do not qualify for support through social care under social services regulations. Equally, we see with elderly people not just an increasing population, but a common mental health read-across. Elderly people who are admitted to trauma wards, for example, usually present not just with the trauma, but a multi-disciplinary set of concerns. Will the new Care Quality Commission really improve the lot of these complex cases, or will we see a more generic service that will not address the specifics of care for these people?

Ian Kennedy:   May I respond while Anna thinks of the right answer?

Q 24

Angela Browning: I do not want to leave the witnesses trapped, but my concern is behind this point.

Ian Kennedy:   Not at all. First, it is not in the gift of any regulatory body to improve anything: all it can do is seek to promote improvement by using its powers and persuasion. My second point is that we are already working closely, not only with the Commission for Social Care Inspection and MHAC, but also the Audit Commission and others, precisely to look into how people are dealt with when a variety of services are brought to bear on their circumstances. My concern, and I say this frankly, is that our growing expertise in being able to work together, drawing on the particular expertise that we have and putting it together with others, could be in danger of becoming dissipated as one goes through the process of creating other new organisations. The greatest danger of all will be if the new organisation, having heard what Lord Patel, Dame Denise and I have said, decides none the less that there is a new way of doing what needs to be done, and three or four years from now it will perhaps decide what that new way is. My concern is for people during those four years.

Lord Kamlesh Patel:   This goes back to the question about regulations. The irony is that currently, the Mental Health Act commissioners might go into a ward to see a detained person, and they will walk past somebody who may be tied up in a chair but who is not detained, and we can do nothing about it. In the regulations, we could ask the Secretary of State to allow us to do something—we have been asking for 20 years and we have not been given that permission, although it is in the regulations.

Ian Kennedy:   You don’t need a new body.

Angela Browning: Thank you.

Q 25

Greg Mulholland: I want to ask a few questions about the powers of the new Care Quality Commission. I know that Dame Denise Platt has made some comments on that, which she might like to expand upon. I would like to ask the other two organisations whether they are generally happy with the powers that the new commission will have. If not, are there any specific changes to those powers that they would suggest at this stage?

Anna Walker:   There are three issues that I would like to focus on. The principle behind the first two is our concern that the Bill, as drafted, may be focusing too much on the regulation of providers, whereas the provision of health care is about what care is purchased or commissioned on behalf of the user as well as the provider—that is of course also true for social care. We have concerns about two particular areas. The Bill, as drafted, gives the new regulator the power to carry out wider reviews. That is welcome, because it is under that power that we have looked at learning disabilities, mental health and dignity in care for older people in hospital, so it is a very important power to us. The difficulty is that it is limited to providers only. What we find in health care—I must leave it to others to talk about social care—is that you can say to a provider, “Look, that service simply isn’t good enough”, to which their answer can often be, “But we are not being paid to provide any more than that.”
In order to get the issue right, on behalf of the user and the patient, you have to look at a mixture of commissioning and provision; what the primary care trusts are doing, as well as what the provider is doing. We would like to see that power for the wider review cover commissioning as well as provision.
There is a second issue to which we attach considerable importance. The Bill, in a very welcome way, has a power to carry out investigations, and we have carried out a number of significant investigations, as the Healthcare Commission. Again, however, in this area the presumption is that the enforcement powers in relation to providers will be sufficient to remedy a problem. However, when we carried out our work—for example, in Cornwall, on learning disabilities; or at Stoke Mandeville and Maidstone and Tunbridge Wells, on infection control—we found that we could not make recommendations solely in relation to the provider. It required work by a significant number of local organisations: the local strategic health authority, the local PCT, or possibly an independent provider. What we would therefore like to see in the Bill is the power for the new regulator to recommend, as we have at the moment, what are called special measures across the health care grouping as a whole. We notice that in the legislation those powers are given on social care in relation to local authorities, and to Welsh NHS bodies, but not to English NHS bodies, so it is that special power in relation to English NHS bodies. I am sorry; it is complicated, but I hope I have made it clear. When you have something that has gone seriously wrong, you need to go in and say that a range of people have got to do things differently around here.
The final point that I would like to make, very quickly—it is a very different point—is that there is a power in the Bill for the new regulator to carry out certain co-ordination of regulation. This is to ensure that there is not too much duplication of regulation, and we absolutely recognise that that issue exists. It exists particularly in health care, more than in social care. The difficulty is that the Bill as drafted refers only to those with inspection powers. There are many regulators and performance managers who do not have or do not use inspection powers, but do add to the duplication of regulation and assessment. What we are saying in relation to that bit of the Bill is that we think that it needs to be re-addressed to ensure that the co-ordination power has gone sufficiently broadly, and we certainly believe that it needs to go beyond inspection, which is a very small part of regulation as a whole.

Chris Heginbotham:   May I add briefly to what Anna has said? We agree with everything that the Healthcare Commission has set out. First, we would want to see the power in relation to notification of information. I will not say more about that, but it clearly comes in here, as well as in our previous discussion.
Secondly, the point about effective commissioning and the power to monitor the way that commissioning is undertaken, is going to be especially important, as is ensuring that the money is available to pay for any necessary changes and improvements. I want to draw attention to the potential tension that might emerge with Monitor—the foundation trust regulator—and foundation trusts, where there are different incentives at work. That has not yet been mentioned and it is a tension that we need to be very aware of and the Committee needs to be aware of.
The third aspect for us is how the registration process will operate and what the critical features of registration will be. Will registration include not only economic issues and some care quality issues, but civil, legal and human rights concerns? We would want to be sure that the threshold for registration, the ability to meet the registration criteria, was sufficiently high that there were adequate services available to vulnerable people—people who are detained but also the others that Angela Browning spoke about. Linked to that, we therefore want to see the power of enforcement strengthened to ensure that the Care Quality Commission could require specific changes if organisations were seen to be breaching their registration requirements, which would be set at a fairly high level.

Paul Snell:   May I comment on the social care aspects? Supporting Dame Denise’s earlier comments, we support the additional enforcement powers in the Bill and there are a couple of examples that I would like to give about how that might be subtly extended. We have done a lot of enforcement work over the last 18 months to two years to try to refine the way in which we respond to services that are not performing as well as they might. Essentially, the problem that we perceive is that we sometimes get caught with a blunt instrument, between whether a service should stay open or should close. That is the stark choice that is open, so we are pleased that a range of intermediate enforcement powers are located in the Bill; the fixed-penalty mechanisms and the suspension of registration.
I have a couple of things to add to that. We are keen that the power of suspension of registration would also enable the new commission to require the service to prevent new admissions and not take on new people who are using services. We are sometimes in the position at the moment where it is possible for us to initiate a proposal of closure, which goes through the normal appeal mechanisms and can end up with a lengthy period awaiting a hearing at a care standards tribunal, where that service is able to take new people, despite the fact that as a regulator we have said that we think that it should close. Clearly that is not a logical position and we hope the Bill will address that issue.
My second point is a question about the Bill: does it sufficiently encourage the co-operation of local authorities in support of the activity of the new commission? We know that under the National Health Service and Community Care Act 1990, the local authority has a duty to provide an additional service, or a new service, when a service is closed. We think it would be helpful for there to be a duty for local authorities to co-operate in the closure of a service—providing support during the process of closure and the reassessment of residents if it is a care home, or of people who are using a domiciliary care service, and working with the regulator to ensure the smooth passage of people who are using services from one service to another, in the event that the service closes.
My final point, which emphasises some of the things that are already in the Bill but is about strengthening those provisions, concerns the sharing of information: the sharing of information with the public and with local authorities as commissioners of service, to enable them to make decisions about which services they purchase and contract with. Equally important is the sharing of information with the people who are using the services and their carers, to enable them to make informed choices. We think that at least as many poor services cease operating because the people who are purchasing them stop doing so as a result of us taking enforcement action. Of course, you can only do that on the basis of good information, good knowledge and, as Dame Denise said earlier on, the publication of our inspection reports.

Ian Kennedy:   May I, with your indulgence, add one more point to Mr. Mulholland’s question about powers? It is, in fact, one of the oddities that there is one area in which there are no powers, in which modern regulatory systems really need to operate: the world of looking at standards and seeing whether they are being applied, varied or deviated from with a view to then cranking up action if they are not. Clause 41 is a free-standing clause that has a reference to a set of standards, but there is nothing else in the Bill, as I see it, that requires the regulator to have much regard to those standards or to seek to implement them in any way. If modern regulation requires the notion of constant improvement—constant provocation of improvement—by cranking up the standards or by having within the standards the idea of improvement, and if you have a registration system that may set a bar relatively low and thereafter you need to, as it were, promote improvement through standards, it is, in my view, a power that is not given and ought to be given; namely, the capacity to use what is in Clause 41 in some way to promote the general notion of improvement, which is at the beginning of the Bill. Therefore, it would be worth looking at whether Clause 41 could be tied either to the registration requirement or to the general notion of improvement, rather then being free-standing and, therefore, amenable to being ignored.

Q 26

Stephen O'Brien: Before we move on and particularly while we are on that point, I would like to ask a quick supplementary. From what I heard earlier, and particularly in relation to the Clause 41 point that has just been made, is there shared concern about the delays that have already been referred to? If the information in the data generated by the activities that you all currently carry out, and that will be carried out under the umbrella body, generates this vital information base—often quite generically through visiting and inspection—it is a very powerful tool for benchmarking and upgrading the standards that are applied in these specialist and often tough areas. Is the absence of being able to go straight to publication, which is often a powerful leverage tool to get these things understood in the public mind, as well as in the users’, rather than going, as it were, in house via the Minister, a worry in terms of the potential independent power that you have? Going back seven years, I recall the great debates we had when the community health councils were axed and the absence, therefore, of the ability for things such as bedwatch suddenly to be a major standard upgrader within the health service. I do not know whether brief comments would be possible from the three bodies.

Chris Heginbotham:   We would want the Care Quality Commission to be able to report fearlessly on anything that it found was of serious concern—if that is answering your question correctly. We have always felt that it was essential to be able to put into the public domain significant concerns that we have. We do that predominantly through our biennial report under the Mental Health Act 1983. The Care Quality Commission will have a requirement to report annually on mental health care. At the same time, we would want to see an opportunity for the Care Quality Commission, at any time, to be able to report publicly and to Parliament about any matters it finds of serious concern.

Ian Kennedy:   Mr O’Brien, your point, if I may say so, is extremely well taken, but it is a little bit more subtle than that, because it may turn on what you are entitled to look at.

Stephen O'Brien: Indeed.

Ian Kennedy:   It depends on what the standards and the registration requirements are, what the general purview is and what needs to be done with the permission of the Secretary of State and so on. Of course, you publish everything that you have done, but a function of what your powers are would determine what you can publish.

Dame Denise Platt:   One of the things that an intelligent commission and regulator does is make the unusual connections between pieces of information that are routinely collected and published. They can cross-fertilise them and ask the next question. When talking about how people with mental health problems are treated in accident and emergency, we could add “and when they are discharged to the community—to a private care home—what is their support?” It is the ability to take slices of information and look at them in a different way, perhaps doing additional work that will illuminate the question you have asked, and to report on it fearlessly and independently without asking prior permission. That is an important function of any regulator and I hope the Bill does not water that down or put into abeyance for a year the capacity to do that because that would mean our work stopping and starting again, and what is the point of that?

Q 27

Angela Browning: As a member of the Public Accounts Committee, I just wanted to observe that in recent months the National Audit Office has done in-depth studies into both dementia and stroke services and, although its focus is very much the use of public money, other advantages have come out of those two very detailed reports, which it was able to make without any permission needing to be granted. It seems ironic that we rely on the NAO for those reports and that you do not have the discretion to commission them yourselves.

Q 28

Stephen Crabb: Thinking specifically about the powers of the new commission to issue penalty notices and suspend registration, it might be helpful for the Committee if members of the three organisations could outline the circumstances in which they would expect the new powers to be used.

Paul Snell:   The penalty notice is a good example of when you might visit a care provider and come across a number of instances when Criminal Records Bureau checks were not in place. You might then ask yourself the question, “Is this service a safe service?” Clearly, if the answer is no, it is not a safe service, that brings into question whether the service should continue to function.
If the service is fundamentally a safe service, but it is being managed ineffectively, that might be an example of when a penalty notice is used. It must be absolutely clear that the service is important, it functions well and that its quality is good, but that its potential safety is being compromised by ineffective management. The penalty notice gets us exactly to that point.

Q 29

Stephen Crabb: Is there no other mechanism that would currently work in such a situation?

Paul Snell:   The mechanisms are mechanisms of encouragement. You would make it a requirement and follow it up with a statutory warning notice. You would still get to the point at which you would have to say, “Are we going to close this service or keep it open?” The mechanism is too long-winded, if it is not sharp enough—if I can exemplify it in that way.

Chris Heginbotham:   May I give two brief examples? In the first, we might find a small private unit or an independent sector unit for people with learning disabilities where all the patients are effectively detained—de facto detained—but none of them had been lawfully detained. At the moment, our remit does not run to so-called de facto detained patients, as Lord Patel said earlier. We found such a unit about a year ago where a large number of the patients was not allowed to leave. They were locked in their rooms. That is an example of where we can try to encourage, as Paul said, but where some form of penalty notice or immediate enforcement would be helpful. Of course, the Care Quality Commission will enable continuity across informal and formal patients to be achieved, which we cannot do at the moment.
Another example typical of the services we have seen is when informal—non-detained—patients are held in seclusion. By definition, if they are being secluded, they are being detained, but they have not been detained under the Act. When we find that on one occasion, perhaps we will encourage people to manage the service better, but if we go back time after time and keep finding that situation there comes a point when you have to say that there needs to be a penalty for continuing to treat patients unlawfully and inappropriately.

Anna Walker:   We work under two regimes at the moment, one which already has penalties attached to it and another, for the NHS, which has not. Overall, we find our powers sufficient at present to do what we need to, in the sense that our first approach is to try to understand what is wrong and what fundamentally needs to be put right. We would then try to work with the provider to put that right; if it becomes clear that that is not working—and it may become clear, both in the independent sector and, sometimes, in the NHS—we move to more severe measures. In the independent sector there are penalties, and we are beginning clearly to publicise the issue through a special measures route regarding the NHS. That is why I attached such importance earlier to that special measures point.

Q 30

Richard Burden: My questions are related to the Healthcare Commission, specifically on the enforcement issues relating to infection control. I understand the points that you were making earlier about your wish to have oversight over commissioners as well as providers. I have got that point, but it is really about the issue of providers.

Anna Walker:   Yes.

Q 31

Richard Burden: The new commission will have tougher powers, as the Secretary of State made clear at Second Reading—for example, by closing hospital wards. I am just trying to clarify whether the Healthcare Commission thinks that those additional powers are necessary. Did you ask for those powers, because you, Anna, have just said that you see your current powers as being sufficient? However, I am also conscious that in your response to the Bill, Sir Ian, you said that the vision set out by the Department offers a sound basis for the regulator’s function, and means that the regulator would have additional powers while continuing to maintain a modern, risk-based, information-driven approach to regulation. We will come on to your concerns in a minute but, first, are those additional powers necessary? I am not sure exactly what you were saying about them.

Anna Walker:   They are not necessary, but we will use them if they are there. If I could just, as a specific example, take Papworth—where there were some concerns recently about the high death rate—whose unit was closed for two weeks while we looked in depth at what was going wrong there. So, we got where we needed to be without those powers.

Q 32

Richard Burden: Are you saying you think that the powers are not necessary, but that if they are in the Bill they are an additional item in the armoury, or are you saying that you think they should be removed?

Anna Walker:   We do not overwhelmingly need them. The hygiene code has an improvement notice process attached to it, which is not the process in the new legislation but is actually very important; it allows us to go in and say, “Look, there is a problem on infection control here, and this is what we want you to put right”. So, it is then working with the grain of, “Let’s get this issue right”. If they do not do the work on the improvement notice, we then follow it up at a later stage. At the moment, we have to make a recommendation to the Secretary of State for further action on that.
We are making the point that we have a lot of powers at the moment, given that to get where you need to be is a question of encouraging people to put in the improvement that is needed and, if they are really recalcitrant over that, only then moving to the powers that penalise them.

Q 33

Richard Burden: So, if I understand it correctly, what you are saying does fit with what Sir Ian said in his response. You would not wish the powers to be used just at the drop of a hat, but to be a discipline that the regulator would need. You would want to encourage an escalation approach but, whether or not you would have brought them in, you are not necessarily saying that you want the powers removed.

Anna Walker:   No, that is right. The other point which is very important here is one I would like to attach to specific cases we have had. One of the cases that caused us very great concern was the maternal deaths in Northwick Park. In those circumstances, you could have argued that we should have closed the unit as a whole, but in practice, we could not have taken that approach. The reason for that is that although some women could be absorbed in maternity units elsewhere, they could not all be, so the issue there was how did we, with the Department’s help, go in to ensure that women in that unit were safe? That is a very good example of where we would not have closed the unit. What we would have done, and what the new regulator would need to do, would be to turn again to the Department and say, “Here we are, with the NHS, we need to put the best possible maternity consultancy help in here”. Because that is what actually happened in those circumstances to reassure the women of London.

Ian Kennedy:   If I may say so, how you described it earlier is exactly the case—you need these gradations and flexibility. To take one example: a solo practitioner in central London who is doing lasers on women’s faces, or whatever, might be a particularly good example if you have enough evidence to stand before a court on a Friday night and say “Close that”—as I have done. But anybody contemplating that you close a major accident and emergency unit without considering the consequences is not in a world that I recognise. You would have to manage that differently, and Northwick Park was such a classic example; 100 women a week have their babies there so you are not going to say, “Oh, close the door and close the unit”. What are you going to do with those women?
Furthermore, you cannot even do things that are sufficiently high profile to frighten women who are going to have their babies there—you must be able to manage it. We did manage it with the Department in such a way that there is a new team there which is completely reorganising things so that when you go there you will be safe, as was the case. That is the responsible way to do it; that reserve power might be desirable in some circumstances, but it is not to be used without recognition of how the real world of the NHS, which is a large, interactive, technical world, really works. It would be folly otherwise.

Lord Kamlesh Patel:   This goes back to what Sir Ian said earlier, which was that we cannot improve it—we regulate and monitor in a sense. We would probably like to shut down half the mental health wards that we visit every week, but bearing in mind that occupancy rates stretch from 100 to 140 per cent. in most of them, that is not going to happen.

Q 34

Anne Milton: Mrs. Walker, could I just bring you back to an example you mentioned earlier, which was that of Maidstone and Tunbridge Wells? Do you think that these powers would have helped the outbreaks of infection there? Would they have altered the outcome?

Anna Walker:   No, because what happened at Maidstone and Tunbridge Wells was a fundamental breakdown of leadership and management and the clinical governance processes. What we, the Healthcare Commission and the new health care regulator, can really contribute in that instance is spotting those issues before they become a problem.
This is where the registration requirements and the standards that Ian was talking about become important because you want to be absolutely clear, as we are, as to what organisations need to do to get proper infection control processes in place. We then need to look at the outcomes, the information. Are infection rates going up in that area? If they are, then we go back in and look. At that point, if we find a trust which is cavalier about putting the right processes in, then the penalties will be helpful. It is usually more fundamental than that—the team does not understand the processes it needs in place to solve that problem.

Q 35

Anne Milton: And you did not have the power that you needed?

Anna Walker:   No, we did have the power. We went in to carry out an investigation. We started that investigation in 2006, I think, and right from the beginning we had an exchange with the trust as to what it needed to do to remedy the situation that it was in.

Q 36

Anne Milton: But you did not have enough enforcement powers, penalties and that sort of thing.

Anna Walker:   No, we did have enough enforcement powers. I would like to make a different point, as it is an issue that we have not discussed and was raised in relation to Maidstone and Tunbridge Wells. The issue is about spotting where there is a problem and going in. If the trust will not listen, penalty powers should be used. However, at the end of a process like that, there is often considerable public anger and concern about what has gone on and I wonder whether some of the penalty issues need to be recognised in that context. The maximum fine allowed under the new legislation would be £50,000. There is an issue about public concern which that measure does not meet, but it is a different issue from whether we have the powers to go in and put things right early on.

Q 37

Anne Milton: And the public will look to this new body to be able to stop incidents such as those that happened at Tunbridge Wells?

Anna Walker:   Yes, but it is not just to stop them happening; it is that, if such things occur, there are sufficient penalties on those who have allowed them to happen under their watch, and that is a different issue.

Q 38

Kelvin Hopkins: My question is about inspection. A view seems to have emerged already from what has been said, but the Bill does not appear to specify a minimum period between reviews of health and social care organisations by the commission. Do you envisage any change in the frequency of inspections?

Jimmy Hood: Let me remind witnesses that the guillotine falls in four minutes, so please keep replies brief.

Chris Heginbotham:   We think that it is important that mental health services which take detained patients are visited regularly and frequently. We are not an inspection body, we are a monitoring body. We monitor the operation of the Mental Health Act as it relates to detained patients. We want that to continue and we believe it is important that the visiting programme is done flexibly and that if necessary, more frequent visits are carried out where there are concerns. Our performance indicator is that we visit every hospital or unit at least once a year, and every ward that takes detained patients at least once every 18 months. There are some places that we visit much more frequently, and we would like to see that continue.

Q 39

Kelvin Hopkins: I wish to ask a supplementary question about residential care for the elderly, much of which has been privatised. In the past, it was regulated by local democratic control and the ethics of public service, but it is now driven much more by the profit motive. Is it right that there should be lighter-touch regulation of such care homes? I understand that there is the possibility that, instead of being inspected twice a year, there might be inspections once every three years. Is that sufficient?

Dame Denise Platt:   The inspection of residential care homes falls to the Commission for Social Care Inspection. Two thirds of the provision of residential care is carried out by the independent sector—that is the voluntary sector and the private sector. The public sector is now the provider of the smallest number of services. In our “State of Social Care” report, we publish comparisons of how each sector performs against the national minimum standards that we currently use to inspect services. The level of performance against those standards has shown the best performer to be the voluntary sector, behind that comes the private sector—although when we publish our report this month, we will see that the private sector is rapidly catching up with the voluntary sector—and the sector that performs least well against the national minimum standards is the public sector.
We believe that inspection is very important. We think that it should be proportionate and that we should concentrate on inspecting those services which are not doing well, and encouraging those that are doing well to get on with it. A range of other information from commissioners, members of the public and the LINks has been set up to alert us if there is a concern. We require an annual self-assessment from all care services in social care, both now and in the future, and that will determine how often those services are inspected.

Jimmy Hood: Mr. Kennedy, you have ten seconds.

Ian Kennedy:   A modern regulatory system in health care ought to be based on having information and reacting to that information. It should be risk-based so that the number of inspections or visits is a function of the risk, it should not be stipulated.

Jimmy Hood: Order. I thank you.
I welcome Professor Troop to the Committee. We are now eating into the time for questions.

Q 40

Laura Moffatt: Good afternoon, it is great to see you, Professor Troop. This morning there was, rightly, emphasis from those who gave evidence not just on the inspection and regulations, but the health of those involved in the process. My first question is, do you feel that the measures that are outlined, particularly under clause 45, are sufficient for the Health Protection Agency to support the Bill, or would you like to see further measures or deletions?

Dr. Troop:   No, we are confident that the new Bill would enable us to carry out the work that we need. We think that it gives us proportionate, flexible responses. At the moment we have a rather rigid way to respond, and the Bill would give us a more flexible one. At the same time, we have been building in very good safeguards for the public, so we have taken through with the Department a whole range of scenarios. As public health doctors, we are the ones who tend to use the law and advise the local authorities. We have taken them through a whole range of scenarios in which we may have to act, and we think that the Bill now responds to all the scenarios that we presented.

Laura Moffatt: That is very helpful, thank you.

Q 41

Anne Milton: The new health protection information has set out that the measures can be used only in response to a serious and imminent threat to public health. Who will advise the Secretary of State about what is a serious and imminent threat to public health?

Dr. Troop:   My understanding is that those are the special powers. Many of the powers of regulation will be there on a routine basis, and a serious and imminent threat would be if it were a new severe acute respiratory syndrome or something like that. We would be one of the agencies that would advise the Department. We are already the focal point for the international health regulations; we work closely with colleagues at the World Health Organisation and the European Centre for Disease Prevention and Control. We are regularly in touch with all those organisations. We would do a risk assessment and then advise the Department on whether we thought that there was an imminent danger.

Q 42

Anne Milton: You would be well-placed to do that?

Dr. Troop:   Yes, we have the expertise in our centre for infection and our centre for emergency preparedness; we look not only at general infections but at dangerous pathogens and important diseases.

Q 43

Anne Milton: Do you think that there is any concern about the interpretation of a serious and imminent threat?

Dr. Troop:   I think that it would have to be on a case-by-case basis. It is a very rare event. If we think about severe acute respiratory syndrome, for example, in Canada, where they could see a very serious event unfolding, they passed legislation which enabled doctors to require people to stay at home if they had been in contact with SARS. I think that was a proportionate response, and it is that kind of assessment that we would make. We make assessments all the time on situations, we do horizon scanning all the time and therefore we would be well placed and it would have to be on a case-by-case basis.

Q 44

Anne Milton: And you are comfortable with those words and the interpretation of them?

Dr. Troop:   Yes, we have discussed those with the Department and they fit very well. I think that it gives safeguards. We would only want to see that kind of action take place in those very rare situations.

Q 45

Anne Milton: If I could just move on, the Local Government Association has argued that passing local health protection power from local authorities to the judiciary will possibly slow down the response to threats to public health. I would be interested in your views on that.

Dr. Troop:   At the moment, we have recourse to public health law. We have checked with our staff—there are probably around a dozen or so cases per year. This is where we have to require someone to be moved into hospital. At the moment, we do the same thing; we go to a JP. We have not found that that is a problem. If we are going to take those kind of powers and if we are going to require someone to act in a way that they think is against their interests, we think that it is right that that individual and our staff have the backing of a JP to do that. Our experience is that we can always get hold of somebody in a timely way and we have not found that to be a problem. My colleagues and I have all been involved in this situation and I do not think any of us have found that to be a problem.

Q 46

Anne Milton: The witnesses are nodding in vigorous agreement, so I assume you are of accord. There is a balance to be found between responding quickly enough and, as you rightly say, getting a proper person to adjudicate on the matter, and a JP would obviously have the confidence of the public.

Dr. Troop:   Our experience is that having the law there makes a lot of difference. We do have situations, for example, where people with infectious multi-drug-resistant tuberculosis clearly might cause harm to others. They often have rather chaotic lifestyles and therefore we have difficulty in persuading them to go into hospital. If they know the law is backing you, often, you do not need recourse to the law and they will then be willing to go to hospital. At the moment we have to go back again to get them to stay in hospital. This will enable us to do both at the same time, or it will enable us to require them to stay in a local authority hostel or something. At the moment, we can only send someone to hospital. This will allow us to have a much wider range of action, which might be less restrictive on that individual, which we think is positive.

Anne Milton: Thank you.

Q 47

Jimmy Hood: Professor, because of the speedy handover of the baton, I will now be able to welcome your two colleagues, who we were not expecting, according to our agenda, but we are delighted to have them here. If you would just introduce them.

Dr. Troop:   I am Professor Pat Troop. I am the chief executive of the Health Protection Agency and I have been in public health for many years, working at local as well as national levels. Dr. Bickler is our regional director for the south eastern region who has therefore also worked at local, regional and national levels. Professor Catchpole is from our Centre for Infections and has been a public health doctor for many years as well, but also, it is in his department that we have the focal point for the international health regulations.

Q 48

Stephen O'Brien: I would like to ask a specific question which relates to the subject under discussion. By way of introduction, could you give a view as to whether, as the Health Protection Agency, you think the current Bill we are about to look at line by line, both overall and in the detail you have read so far, has sufficient reference to and powers for public health generally as an emphatic part of our overall provision of health and care to the people of this nation? Then I might come on to a more specific point.

Dr. Troop:   Perhaps it would help if I clarified that we have three national centres, one for radiation and chemicals and two which deal more with infections, some of which are dangerous pathogens. Obviously, therefore, we have a concern about that, and we have a network of local and regional people who work closely, for example, with local authorities. Many of our staff are proper officers and therefore act as agents of local authorities in this field. So from our perspective obviously this is a key Bill.
We have been supportive of modernising public health law for many years and many of us have been encouraging that and we did some development work which we presented to the Department, which has also been part of the work behind the proposal.
First, I think that the advantage to us is that it is an all-hazards approach. Since we have been in our position, we have been responding to chemical incidents, radiation incidents—as you know last year—and infections. The international health regulations are all-hazard and therefore this reflects much more the modern practice. Secondly, it allows us a more flexible and proportionate response, as I have said. At the moment, we have to require people to move to hospital, whereas it might be more appropriate to require people to stay at home, which would be less restrictive for them. Therefore, it allows a more flexible and proportionate response. We think that it maintains the protection of human rights, which we are concerned about. As we and our staff work with individuals, we are concerned that they feel confident that they are protecting the individual’s human rights. As I have said, our recourse to the law is limited but it is very useful to have that backing. We have worked a lot with the Department; we have presented many scenarios and it has endeavoured to ensure that the law would cover those scenarios.

Q 49

Stephen O'Brien: I am very grateful that you have given us an opportunity to understand the principle that lies behind your point of view. Picking up now on the thread of discussion, are you happy that it is actually JPs who are going to be the people that can force individual citizens of this country to submit to medical treatment? Obviously you might not want to pass a judgment as to how draconian or not you think that is, and on the broad consent of and contract with people whom, after all, public health is done for and on behalf of—rather than done to, one hopes. Could you give a view both on the use of JPs and whether that is a proportionate part of the approach?

Dr. Troop:   Yes, I think that, from the Bill, we would not be able to require people to have treatment; I think that that is specifically excluded. This is protecting in a public health situation, so it would be removing people or things or whatever—there are a number of different clauses in here—to reduce the hazard to the public. So we would be able to require people to go to hospital.
As I said, there are about a dozen cases a year where we cannot persuade someone to go to hospital and there are other situations where we think someone might be putting others at risk and they are unwilling to act to reduce that risk. In those situations, we need the backing of the law, but we think that it is in the interests of both the individuals and our staff that they have, I think, the JP backing for that. Also now, particularly as they can go for appeal—at the moment there is no appeal if you go to a JP—we are concerned that this balance is being adequately met. I think that my colleagues would support that.

Q 50

Stephen O'Brien: I understand the use, and perhaps you could draw a distinction between those things that are a collective hazard, such as pandemic flu—and you therefore have, if I can put this brutally, a herd issue—and an individual issue whereby somebody whom you might describe as having a chaotic lifestyle has taken it upon themselves, if they happen to be HIV-positive, perhaps, that it is important to go around biting people if they can, and they therefore present a serious individual hazard that must impact closely on the criminal law. So one can try to draw a distinction between herd issues and individual issues, and how your enforcement powers and the use of JPs might have application there. Also, who is going to advise the judiciary as to the appropriate use of its powers once, in effect, you call upon it to be part of your process?

Dr. Troop:   In terms of the evidence that we would have to present to a JP, I think that that is going to come out in the regulations as the range of evidence we would be required to present. But that is what happens at the moment. There is also an officer of the court whom we would contact, who would identify a suitable JP as somebody who was available. We would put together a package of information and evidence and that is what we would present. It is an agent of the local authority, and many of our staff are agents of local authorities, who would do that. Primarily, they are medical practitioners.

Q 51

Stephen O'Brien: Would there be any difference between the herd and the individual?

Dr. Troop:   There are three different scenarios. One is an individual, where we very often have a situation. There may a small group—again, under the legislation we would be able to require a group of people—although that is not a very common situation. The larger group, in my understanding, comes under new sections 45C and D, where the Minister can put in place regulations for what we call imminent threat, where we would advise, among other things, the action that would be taken. According to the way that I understand the Bill, the Minister could then enable the commission to say, “I am sorry. You have all got to stay at home.”

Q 52

Stephen O'Brien: Has some study been done on the way that interacts with other recent legislation on civil contingencies and taking civil powers, which I think is what Laura Moffatt’s question initially hinted at?

Dr. Troop:   I am clear that my Department of Health colleagues have looked at that. Our role has been to look at the scenarios that we would respond to. Clearly we are also subject to the Civil Contingencies Act 2004 and we are subject to most of the other legislation, as well.

Dr. Bickler:   I think it fair to say that a number of the scenarios that we put would not fall under the Civil Contingencies Act.

Q 53

Stephen O'Brien: Would or would not?

Dr. Bickler:   They would not because regional emergency powers would need to come in then. A lot of our concerns, be they individual or group, would not be at that level.

Q 54

Stephen O'Brien: So, it would be more likely to be a herd issue than an individual one?

Dr. Bickler:   For example, yes.

Q 55

Laura Moffatt: Could I ask you to offer us a hypothetical case where these powers may be used? It would be helpful to Committee members to have an illustration.

Dr. Troop:   At an individual or group level?

Q 56

Laura Moffatt: One of each would be great.

Dr. Troop:   I have described the one relating to tuberculosis. From our perspective, that is one of the more common situations. There may be other situations—for example, an alternative practitioner using unsafe practice, where we could require them to go through training or we might be able to seize the equipment if we felt it was infected and they were not providing us with the information that we needed, or they were not willing to hand something over.
There are food handlers or child minders, for example, whom we might think have E. coli and who, for commercial or financial reasons, might be unwilling to stay off work for as long as we would want to make sure they were free of E. coli before they were preparing food for children. There are those kinds of situations regarding an individual, although in our experience it happens very rarely. It is in those situations where we really felt children that might be at risk where we would want to do that.
On the herd question, it is the SARS-type scenario. Where a new and emerging disease was sweeping round the world or we thought that it was imminently coming to our country, those are the times we would want to use those kinds of powers.

Laura Moffatt: That is very helpful. Thank you.

Q 57

Stephen O'Brien: For instance, would the increasingly worrying instances of TB, which are not proving amenable to known controls, be an example?

Dr. Troop:   Yes, and an important disease that was an unusual one. Our responsibility is often in making those diagnoses. Our laboratories pick up very rare and unusual diseases. We scan what is happening internationally and we know what is at high risk. For example, if someone came back having travelled from a particular area, we might wish to take powers then. Again, it might be someone who is reluctant to stay at home.

Q 58

Brian Jenkins: I am very glad to have the opportunity to speak to you on this issue because the break between local authorities as a health protection originally was, I thought, brought about because local authorities provided the sewerage system and because that was one of the big public health issues, so there was an incentive for a close tie-up there. Now, they no longer provide the sewerage system, which is provided mostly by companies, and they no longer provide the water system; they do not have that basic requirement. The world and the structures have changed.
Now we see, as was mentioned in relation to public transport, dangerous materials transported up and down the country on road and rail, and the tremendous churn of all-day traffic. While we are looking at the issue of the break and the realignment, are there any other areas where we should consider realigning because over time, there has been insufficient change and the power to run something is no longer in the most appropriate place regarding public health?

Dr. Troop:   There have been some things. For example, we have been clarifying the roles and relationships for port health, where they have responsibilities, such as monitoring food that is coming in. As an agency, we have taken an overview of the public health responsibilities and the medical inspection areas, trying to get standardised approaches across the country for port health. So there has been some realignment of thinking there.
In other areas, on the ground, our practitioners, the NHS and the local authorities work very closely together because there are overlapping responsibilities; for example, regarding food premises. So we work at a national level with the Food Standards Agency and at a local level with the local authorities. They have an environmental health responsibility; we would give advice on contaminated land. So again, there are overlapping responsibilities, and the key thing is that many of our staff remain as proper officers for local authorities, but then local partnerships bring out those different responsibilities.
Also, as an agency, we do not have statutory responsibilities. We cannot take that kind of power, and broadly, we are the ones who give the professional advice to those who do have those powers; that happens across almost everything that we do and it maintains that kind of effective relationship. Graham is the one who works particularly within a region; have you felt that there any such areas?

Dr. Bickler:   I do not think that we have, really. In a complex world, the quality of the partnerships and the working relationships is more important. I do not think that we would assume, as the Bill does not, that significant constitutional changes to the responsibilities would be needed to provide further protection.

Q 59

Sandra Gidley: You envisage the personal restrictions being used only very rarely, I gather. You mentioned human rights. I would like to explore a little further something suggested by the hon. Member for Eddisbury. He suggested someone who is HIV positive and has a chaotic lifestyle. If we rewind 20 years to when HIV was new, there were no drug cures and there was a lot of hysteria, including among health professionals, would you envisage that, if the powers proposed in the Bill were available then, they could have been used in a very restrictive way on a lot of people’s behaviour at the time? Obviously, that would be quite controversial. In theory, the Bill could do that. It is hypothetical, but I am trying to work out what would tip the balance into using those powers.

Dr. Troop:   In most situations, if we are trying to modify the behaviour of a group of people, or work with them on those kind of issues, we would not use the law because you can sometimes achieve a counter-productive effect. If you are trying to encourage a group of people, whether it be to use safe needles or to have safe sex—whatever it is about—much of that involves working with relevant groups on the ground, educational processes and so on.
We would want to use the legislation only if there was an individual who was behaving recklessly or was unwilling to co-operate. If two men or women came forward and said, “We think we may have contracted HIV from an individual” and that person was unwilling to come forward to be tested or to give information about themselves, and we thought more partners might be at risk, we might want to have recourse to law. However, generally, if we are trying to modify behaviour, the educational approach is usually more effective.

Q 60

Sandra Gidley: I agree, and that is the sensible and balanced view, but there was a lot of public hysteria at that time, so could you envisage a situation in which Ministers might feel under public pressure to be seen to be doing something and not follow your advice? Is there a risk of that?

Dr. Troop:   I would hope not, but there are, I hope, safeguards built in. First, at an individual level, we would have to go to a JP and the individual would have the right of appeal. Secondly, at a national level, again we would give advice, there would be professional advice and regulations would have to be laid before Parliament. I would hope that sufficient safeguards were built in. Early on, when HIV and AIDS appeared, we were not supportive of it becoming notifiable, because it again turned the issue into something different, but in fact, it has not been a problem.

Jimmy Hood: Thank you for coming along. I am pleased that we have had time to say thank you, as we have not with other witnesses. I hope that you found it useful to meet the Committee; I am sure that the Committee has found it very useful to question you and to receive your answers.
Further consideration adjourned—[Steve McCabe.]

Adjourned accordingly at three minutes to One o’clock till this day at Four o’clock.